Everding v. McGinn

• Decision Date: 21 November 1889
• Parties: EVERDING v. McGINN, District Attorney. [1]
• Court: Oregon Supreme Court

35 P. 178

23 Or. 15

EVERDING v. McGINN, District Attorney. ^[1]

Supreme Court of Oregon

November 21, 1889

Appeal from circuit court, Multnomah county.

Application by Richard Everding for mandamus to compel Henry E. McGinn district attorney of the fourth judicial district, to institute a proceeding to try the title to the office of police commissioner of the city of Portland, to which office plaintiff claims to have been elected. A peremptory writ was ordered to issue, and defendant appeals. Reversed.

Upon the filing of the petition, the court allowed an alternative writ, to which writ the district attorney returned, among other things, that, upon application being made to him by the petitioner to prosecute an information in the nature of a quo warranto against Joseph Simon, the person alleged to have usurped and intruded into said office of police commissioner he examined into the right and title of said petitioner to have and exercise said office, and the right and title of the said Joseph Simon to continue to hold and exercise said office, and from the examination so made by him he became convinced that petitioner, Richard Everding, had no claim of title to said office; that the term of office of said Joseph Simon, the president incumbent thereof, had not expired; and that he would continue to hold said office until the legislature of the state of Oregon would adopt some further legislation on the subject. The district attorney further claims in his answer that the prosecution of such a proceeding is a matter wholly within his discretion as district attorney, and that the exercise of such discretion ought not to be, and could not be, controlled by said circuit court. He further showed in his answer to the writ that he had offered to institute such proceeding as the petitioner desired on certain terms and conditions, which was declined by the petitioner. The particular terms and conditions are not necessary to be specified, for the reason that they do not affect the question to be determined. The plaintiff demurred to this return, which demurrer was sustained by the court, and an order made directing a peremptory writ to issue, from which judgment the district attorney appeals.

C.H Carey and Alfred F. Sears, Jr., for appellant.

Geo. H Williams and Edw. B. Watson, for respondent.

STRAHAN J.

The first and material question presented by this record is whether or not the district attorney may be compelled by writ of mandamus to institute and prosecute a proceeding to try the title to a public office; or, stating the question in a different form, is the power to institute such proceeding confided to the district attorney by the constitution and laws of this state, to be exercised in his discretion, when he shall determine that a case exists requiring the exercise of such power? Hill's Code, § 357, provides: "An action at law may be maintained in the name of the state, upon the information of the prosecuting attorney, or upon the relation of a private party against the person offending, in the following cases:--(1) When any person shall usurp, intrude into, or unlawfully hold, or exercise any public office, civil or military, or any franchise within this state, or any office in a corporation either public or private, created or formed by or under the authority of this state; or, (2) when any public officer, civil or military, has done or suffered an act which, by the provisions of law, makes a forfeiture of his office; or, (3) when any association or number of persons act within this state, as a corporation, without being duly incorporated." This section is copied almost literally from the Revised Statutes of the State of New York, published in 1859, (volume 3, p. 578, § 432.) It therefore becomes necessary for us to inquire what construction this statute had received in the state of New York prior to its adoption here, for the reason that in adopting it we adopted along with it the judicial construction of that state whence it was taken, as understood at that time. Crawford v. Roberts, 8 Or. 324; McIntyre v. Kamm, 12 Or. 253, 7 P. 27; Trabant v. Rummell, 14 Or. 17, 12 P. 56. ple v. Attorney General,

22 Barb. 114. It was a motion for a mandamus against the attorney general, requiring him to institute the necessary proceeding against Henry E. Davis to oust him from the office of justice of the supreme court, and that the relator might be adjudged to be entitled to said office; but the court held that, under the provisions of the Revised Statutes and the Code, it was for the attorney general, and not the supreme court, to determine whether in any particular case it was proper that an action to try the right to an...